furrbear | Prop 8: After READING the Decision... (Reply)

OK, I'll admit to being disappointed that the CA Supremes didn't chuck out Prop 8, but the decision isn't the great loss that everyone assumes it is. The decision is about as strict constructionist as possible, narrowly and tightly constraining the argument to how Californians may amend their constitution (It's still crazy and, some would arguably say IMO, broken.) Diarist Seneca Doane has a very good analysis of a key point up at DailyKos. In essence, what the Prop 8 folks won was the use of a word - that's it. Here's the intro:

Read page 36. They just cut Prop 8 to the bone.
by Seneca Doane
Tue May 26, 2009 at 11:51:14 AM PDT

Being an activist progressive blogging lawyer requires wearing four hats, one for each word. My first response to Strauss, today's decision on Prop 8, was outrage and disdain. That came from wearing my first three hats. This diary comes from wearing my fourth one. There is still cause for anger, no doubt, but I think that -- as with the "defeats" for progressives in Bakke (regarding affirmative action) and Casey (regarding abortion rights) people have so far missed the most critical aspect of today's decision.

It's on page 36.

I'm not going to say that this decision is a win for our side. But in the most critical ways, it's a loss for the other side.

...

I still, I expect, would have signed onto Moreno's partial dissent. (I'm not done with my reading.) But if you look at who won and who lost today, we lost something emotionally important and our opponents, the people who paid for Prop 8, lost almost everything of substance. In time, they will realize that the battle was really over In re Marriage Cases, and they got their butts kicked.

So, while I'm disappointed, I'm no longer outraged. It's hard to be outraged when a unanimous California Supreme Court just reiterated that California law gives every couple regardless of gender the fundamental right to be married in fact, even if voters have messed with the labels. Our opponents lost more today than we did.